It is not necessary for the court to decide whether a conviction is proportionate under Articles 10 and 11 of the European Convention on Human Rights Act 1998 when considering a charge of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1984, according to the Divisional Court in the Director of Public Prosecutions v Elliott Cuciurean [2022] EWHC 736 (Admin). Proportionality is satisfied if the elements of the offence are established.
The charge of aggravated trespass has four ingredients: the defendant must be a trespasser on the land; there must be persons lawfully on the land who are, or about to, engage in some lawful activity; the defendant must do an act on the lan, which is intended by him to intimidate all or some of the persons on the land out of that activity or to obstruct or disrupt it – Richardson v Director of Public Prosecutions [2014] AC 635.
The respondent was charged with trespassing on farmland in Lichfield, Staffordshire, which formed part of phase one of HS2. Contractors were ready to use the land for storage purposes once it had been cleared. Protesters against the HS2 project had occupied the land and the respondent had dug a tunnel before the land was acquired for the project. He slept in the tunnel between 15 and 18 March 2021 intending to resist eviction and to disrupt the HS2 project. The cost of enforcing warrants of possession against him and other protesters over the three days was £195,000. The judge hearing the offence found that Article 10 – the right to freedom of expression – and Article 11 – the right to freedom of peaceful assembly and association with others – were engaged and that a conviction was not a necessary and proportionate interference with those rights.
The Divisional Court considered it highly arguable that the provisions were not engaged in the case. Articles 10 and 11 have equal weight with Article 1 – a person’s entitlement to the peaceful enjoyment of their possessions. All are subject to the limitations and restrictions prescribed by law which includes the law of trespass the object of which is to protect property rights in accordance with Article 1.
Section 68 of the 1984 Act aims to protect property rights and the use of land by the landowner or occupier for lawful activities in accordance with Article 1. A protest for the purposes of disrupting or obstructing lawful activities on the land does not lie at the core of Articles 10 and 11 and there was no basis in Strasbourg jurisprudence to support the respondent’s proposition that Articles 10 and 11 entitled him to a right to protest on privately owned land or publicly owned land from which the public are generally excluded.
The offence of aggravated trespass was one where proportionality is satisfied by proof of the ingredients of that offence – there was no defence of lawful excuse – and so there was no need for the court to be satisfied that a conviction would be proportionate. The case was remitted to the Magistrates Court with a direction to convict.
Louise Clark is a property law consultant and mediator
